By Doug Kendall the Founder and President of the Constitutional Accountability Center and David H. Gans the director of CAC's Human Rights, Civil Rights and Citizenship Program. This analysis is cross posted at CAC’s Text & History blog.
Supreme Court Reviews Put Voting Rights Act in Jeopardy After Election Proves its Necessity
November 12, 2012
In the wake of an election season in which the Voting Rights Act proved its mettle as the last, best hope against voter suppression efforts, the Supreme Court today decided to review the constitutionality of a key part of this iconic civil rights statute in a case called Shelby County v. Holder. If the experience over the last 12 months proves anything, it’s that the Voting Rights Act is as vital today as it was in 1965 when originally passed. Hopefully, the proven success of the Act and the powerful opinions written by lower court judges from across the ideological spectrum applying it will convince a majority on the Court to affirm rather than undermine the vital constitutionality of the Act.
As everyone knows by now, in the run-up to the 2012 election, the right to vote was under siege. Conservatives throughout the country tried to change election rules to disenfranchise ordinary Americans – passing restrictive voter ID laws, shortening early voting hours, and making it more difficult to register to vote. These restrictions had the greatest impact on young, minority, elderly, and poor voters. They made a mockery of President Lincoln’s description of our government being “of the people, by the people, and for the people,” and they failed to honor the heroic efforts of generations of Americans to ratify six different Amendments that expanded the right to vote.
The happier, but lesser known, part of this story is how effective the Justice Department and progressive organizations were in going to court and using the Voting Rights Act to prevent the worst of these statutes from going into force. In the run up to the election there were a number of hugely important lower court rulings that enforced the requirement that states with a history of racially discriminatory voting restrictions must “preclear” with the Department of Justice any change in voting laws. These rulings provide critical new evidence of precisely why preclearance is still a much needed tool to protect the right to vote free from racial discrimination. Without the Voting Rights Act in place, African American and Hispanic voters in states across the country might have been denied their constitutional right to cast a ballot on election day.
For example, on August 30, in Texas v. Holder, a three-judge court unanimously blocked Texas’ new voter identification statute, the most stringent in the nation, finding that the statute would inevitably disenfranchise low-income Texas citizens, who are disproportionately African American and Hispanic. The court explained that, unlike Indiana, whose voter identification law was upheld by the Supreme Court in 2008, Texas had gone to great lengths to suppress the vote in poor and minority communities, strictly limiting the types of photo identifications available – a license to carry a concealed firearm is a valid ID under the law, but not a student or Medicare ID card – and making it costly to obtain a so-called “free” election ID for use at the polls. For those without one of the five permitted photo identifications, the court found that the law was tantamount to a poll tax, “imposing an implicit fee for the privilege of casting a ballot.” The “very point” of the Voting Rights Act, the court explained, was to deny “states an end-run around the Fifteenth Amendment’s prohibition on racial discrimination in voting.”
Likewise, on August 16, in Florida v. United States, three other judges unanimously held that Florida could not slash the period for early voting, explaining that “a dramatic reduction in the form of voting that is disproportionately used by African Americans would make it materially more difficult for some minority voters to cast a ballot . . . .” Florida’s reduction in early voting, the court explained, was akin to “closing polling places in disproportionately African-American precincts.” Noting that Congress enacted the Voting Rights Act to enforce the Fifteenth Amendment and “provide robust and meaningful protections for minority voting rights,” the court held that Florida could not suppress the vote through a significant reduction in the hours of early voting.
Finally, on August 28, in Texas v. United States, in a yet another unanimous ruling, another three-judge court held that Texas’ new state legislative and congressional districts could not be squared with the Voting Rights Act, finding that new congressional, state senate and state house district lines had either the purpose or effect of diluting minority voting strength. Importantly, because the court’s opinion, authored by George W. Bush appointee Judge Thomas Griffith, held that Texas had purposefully discriminated on account of race in both the congressional and state senate plans, Texas’ districting was both a violation of the Voting Rights Act and the Constitution.
Given all this experience, it’s not surprising that conservative legal activists are desperate to get the Supreme Court to gut the Voting Rights Act, which is precisely what the Shelby County case threatens. And it could work. The Court seemed poised to strike down Section 5 of the Voting Rights Act (requiring preclearance) as unconstitutional in 2009, then blinked and issued a narrower ruling, which has preserved the Voting Rights Act until now.
Which brings us full circle to the big news at the end of this momentous week. After spending enormous energy and resources in confronting the legislative efforts to suppress the vote during the course of the 2012 election, supporters of the right to vote need to spend just as much time and energy making the case to the Court and the broader public about the constitutionality of this iconic civil rights law. The 2012 election may be over, but the fight to protect voting rights has just begun.